Scales of Justice

By Joe Nelson, The Sun
Posted: 02/18/14, 7:44 PM PST |

SAN BERNARDINO >> An Upland attorney’s allegation that prosecutors withheld key evidence from the grand jury in the Colonies corruption case, which he said would have cleared his client of any wrongdoing, has long been a sticking point among defense attorneys since certain court reforms were passed in 1990, a criminal law expert said Tuesday.

Defense attorney Stephen Larson, in a set of motions filed last month, accused San Bernardino County prosecutors of manipulating the grand jury by giving an unfair and one-sided presentation of facts in the case. He cited 20 pieces of exculpatory evidence or things prosecutors did that was prejudicial to his client and prevented the grand jury from fulfilling its role as being an “independent bulwark” of justice and not a rubber stamp for prosecutors.

Larson represents Rancho Cucamonga developer Jeff Burum, who along with three former county officials stands accused of engaging in a conspiracy of bribery and blackmail to secure a landmark $102 million legal settlement from the county in November 2006 with Burum’s real estate investor group, Colonies Partners LP.

Also charged in the case are former county Supervisor Paul Biane, former Assistant Assessor and labor union president Jim Erwin, and Mark Kirk, former chief of staff for Supervisor Gary Ovitt.

All four defendants deny any wrongdoing, and have been battling it out with prosecutors in court for the last four years. The case has been stalled due to appeals that reached all the way to the state Supreme Court. The case is still simmering at the Fourth District Court of Appeals in Riverside, which has yet to decide whether to grant Larson’s request to kick the case back to Superior Court so the defense can proceed with trial.

“The prosecution’s conduct in this case – particularly when considered cumulatively over the course of the entire grand jury proceeding – unmistakably interfered with the grand jury’s independence and impartiality, rendering the entire proceeding a violation of Mr. Burum’s rights,” Larson said in his motion.

“The reality is, as the old saying goes, any prosecutor can get a grand jury to indict a ham sandwich if they want,” said Mark Arnold, a San Jose-based criminal defense attorney and criminal law expert. “They’re the only ones presenting the evidence to the grand jury and can get the grand jury to return whatever the prosecutor wants them to return.”

The mantra “a grand jury would indict a ham sandwich if asked by a prosecutor” was coined by New York State Chief Judge Sol Wachtler more than a century ago, was quoted and immortalized by author Tom Wolfe in his book “The Bonfire of the Vanities,” and has been much repeated in the legal community ever since.

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